Kerala High Court
Union Bank Of India vs Margin Free Super Shopping Centre on 23 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
OP (DRT) NO. 122 OF 2021
AGAINST THE ORDER DATED 06.09.2021 IN OA 148/2016 OF DEBT
RECOVERY TRIBUNAL, ERNAKULAM, ERNAKULAM
PETITIONER/ APPLICANT :
UNION BANK OF INDIA
(ERSTWHILE CORPORATION BANK), A BODY CORPORATE
CONSTITUTED UNDER THE BANKING COMPANIES
(ACQUISITION AND TRANSFER OF UNDERTAKINGS) ACT
1970, HAVING ITS BRANCH OFFICE AT KAZHAKUTTOM
BRANCH, THIRUVANANTHAPURAM, REPRESENTED BY ITS
SENIOR MANAGER GOPAKUMAR J.S.
BY ADV D.GANESH KUMAR
RESPONDENTS/ DEFENDANTS NO.1 TO 4 :
MARGIN FREE SUPER SHOPPING CENTRE
(NOW KNOWN BY NAME M/S.JOSE & SONS HYPER MARKET),
REPRESENTED BY ITS PROPRIETOR (NOW BY THE LEGAL
HEIRS) TAJ TOWER, NEAR KAZHAKUTTOM RAILWAY OVER
BRIDGE, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM,
PIN- CODE-695582.
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 23.09.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
OP (DRT) NO. 122 OF 2021
2
BECHU KURIAN THOMAS, J.
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O.P. (D.R.T.).No.122 of 2021
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Dated this the 23rd day of September, 2021
JUDGMENT
In the peculiar nature of the case, notice to the
respondents is dispensed with.
2. Petitioner had preferred OA.No.148/2016 before
the Debt Recovery Tribunal-II, Ernakulam. Since notice could not
be served on the respondents, permission was granted to the
petitioner to take notice by paper publication. While so, petitioner
had obtained attachment of three properties of the defendant in
the OA as per the order of DRT in IA.No.416/2016. The
attachment is shown as an encumbrance in Ext.P2.
3. Thereafter one of the properties were brought for
sale. After sale, when the petitioner and the auction purchaser
sought to register the sale certificate dated 16.07.2021, the Sub
Registrar objected to the registration on the ground of pending
attachment effected in the very same case (O.A.No.148 of 2016).
Accordingly, petitioner filed Ext.P3, Ext.P4 and Ext.P4
as IA No.1047/2021, IA.No.1049/2021 and IA.No.1050/2021
OP (DRT) NO. 122 OF 2021
respectively in the pending case before the Debt Recovery
Tribunal. The applications were for return of documents to lift the
attachment with respect to the property which was subject to the
sale and a substitution petition to incorporate the new entity.
4. It is submitted by the learned counsel for the
petitioner that without appreciating that petitioner had taken out
notice by paper publication to the defendants and thereafter none
had appeared to contest the matter and also without noticing the
nature of the applications that were filed by the petitioner the
Tribunal ordered notice to be served on the defendants. According
to the learned counsel for the petitioner, serving notice upon the
defendants in the O.A is practically impossible, since they are
absconding and also the same is unnecessary in the circumstances
of the case, especially in the light of notice taken out by paper
publication having been taken by the petitioner in OA.
5. Having considered the nature of the applications filed
before the Tribunal as IA.No.1047/2021, IA.No.1049/2021 and
IA.No.1050/2021 and after hearing the arguments of Adv.Ganesh
Kumar, the learned counsel for the petitioner, I am of the view that
the proceedings of the Debt Recovery Tribunal-II, Ernakulam dated
06.09.2021, in issuing notice to the defendants is unwarranted in
OP (DRT) NO. 122 OF 2021
the circumstances of the case.
6. Petitioner had already taken notice by publication in
the newspaper and there is a deemed service of notice upon the
defendants. The sale has not been challenged by any person till
date. Further, the application is only for return of the original
documents and for lifting the attachment obtained by the petitioner
themselves. Lifting the attachment in the very same proceedings,
that too obtained by the petitioner itself does not require any
notice to the opposite side, specially when they have been set ex
parte after notice by paper publication.
In view of the above, there will be a direction to the
Debt Recovery Tribunal-II, Ernakulam to take up IA.No.1047/2021,
IA.No.1049/2021 and IA.No.1050/2021 and pass appropriate
orders, as expeditiously as possible. To enable compliance of this
judgment, Ext.P7 to the extent it directs notice to be issued to the
respondents shall stand set aside.
The original petition is disposed of as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
OP (DRT) NO. 122 OF 2021
APPENDIX OF OP (DRT) 122/2021
PETITIONER'S EXHIBITS :
Exhibit P1 TRUE COPY OF SALE CERTIFICATE ISSUED BY
THE AUTHORIZED OFFICER OF THE BANK DATED
16.7.2021 IN FAVOUR OF THE AUCTION
PURCHASER.
Exhibit P2 TRUE COPY OF ENCUMBRANCE CERTIFICATE
DATED 23.1.2021 BEARING NO.741/21 ISSUED
BY KAZHAKUTTOM SUB-REGISTRAR OFFICE,
THIRUVANANTHAPURAM DISTRICT WITH RESPECT
TO THE PROPERTIES SCHEDULED IN O.A.NO.148
OF 2016.
Exhibit P3 TRUE COPY OF APPLICATION TO RETURN THE
ORIGINAL TITLE DEED NUMBERED AS
I.A.NO.1047 OF 2021 IN O.A.NO.148 OF 2016
PENDING BEFORE DRT-IIND BENCH, ERNAKULAM.
Exhibit P4 TRUE COPY OF APPLICATION TO RELEASE THE
ATTACHMENT NUMBERED AS I.A.NO.1049 OF
2021 IN O.A.NO.148 OF 2016 PENDING BEFORE
DRT-IIND BENCH, ERNAKULAM.
Exhibit P5 TRUE COPY OF SUBSTITUTION PETITION
NUMBERED AS I.A.NO.1050 OF 2021 IN
O.A.NO.148 OF 2016 PENDING BEFORE DRT-
IIND BENCH, ERNAKULAM.
Exhibit P6 TRUE COPY OF MEMO DATED 26.8.2021
SUBMITTED BY THE COUNSEL FOR THE
PETITIONER/APPLICANT BEFORE THE DRT-IIND
BENCH, ERNAKULAM.
Exhibit P7 TRUE COPY OF ORDER DATED 6.9.2021 PASSED
IN O.A.NO.148 OF 2016 PENDING BEFORE DRT-
IIND BENCH, ERNAKULAM (IMPUGNED ORDER).
